Republic vrs John (D21/031/24) [2024] GHACC 421 (26 November 2024)

IN THE CIRCUIT COURT HELD AT ACHIMOTA, ACCRA ON TUESDAY, THE 26TH DAY OF NOVEMER, 2024 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS.), CIRCUIT COURT JUDGE CASE NO.: D21/031/24 THE REPUBLIC VRS KWAME JOHN aka ‘NATURE’ ACCUSED PERSON PRESENT A.S.P. STEPHEN AHIALE FOR THE REPUBLIC PRESENT NO LEGAL REPRESENTATION FOR THE ACCUSED PERSON JUDGMENT THE CHARGE The Republic v. Kwame John aka ‘Nature’ Page 1 of 13 The accused person was arraigned before this Court on the charge of Unlawful Possession or Control of Narcotics Drugs contrary to section 37[1] and [2](b) of Narcotics Control Commission Act 2020, (Act 1019). The particulars of the offences are given as follows: “That, you on the 1st of October, 2023 at Dome in the Greater Accra Region and within the jurisdiction of this court, did have in your possession, one and half slabs of compressed dried leaves (Cannabis) a narcotics drug without lawful authority.” THE PLEA The accused person pleaded not guilty to the charge after same had been read and explained to him in Twi, being his language of choice. The accused person having pleaded not guilty to the charge, the burden of proof was on the prosecution to prove the guilt of the accused person beyond reasonable doubt. FACTS The facts of the case as presented by the prosecution are that the complainants Inspr. Peter Zufaanibe, Inspr. Peter Azurago and Community Police Assistant (C.P.A.) James Quarcoo, are Police personnel and Community Police Assistant stationed at Achimota Mile 7. That the accused person Kwame John, a.k.a ‘Nature’ is a driver and resident of Dome. That on 1st November 2023 at about 10:00hrs, the arresting officers spotted the accused person in a suspicious manner at Dome market area. That the men followed the accused person to a secured location where they accosted the accused person and arrested him. That upon a spot search on him one and half compressed slabs of dried leaves suspected to be cannabis were retrieved from him. That the arresting officers escorted the accused person to the Achimota Mile 7 Police station and a formal complaint was lodged as the accused person was handed over together with the exhibits. That the The Republic v. Kwame John aka ‘Nature’ Page 2 of 13 accused person admitted being the possessor but not the owner of the substance as it was given to him by an unknown dispatch rider to be handed over to another person whom he refused to disclose his identity or lead Police to arrest such a person. That the exhibit was forwarded to the Police Forensic Laboratory for analytical examination. That the exhibit scientific result after analysis is “positive for Delta-9-tetrahydrocannabinol, cannabinol and cannabidiol” all active ingredients in cannabis. That the accused person was subsequently charged with the offence stated on the charge sheet and arraigned before this honorable court. To discharge their legal burden, the prosecution called two witnesses including the police investigator and tendered the following documents without objection. 1. Caution statement of accused person as exhibit A. 2. Charge statement of accused person as exhibit B. 3. Scientific examination analysis report – Exhibit C series (Forwarding of exhibit – Exhibit C; Test Report – C1 (C and C1) EVIDENCE OF THE PROSECUTION WITNESSES PW1 who is also the investigator herein gave his name as D/Inspr. Awini Abugri Richard; that he is a police detective stationed at Achimota Mile 7 Police station Criminal Investigation Department. He further testified that on 1st November 2023 complainants Inspr. Peter Zufaanibe, Inspr. Peter Azurago and Community Police Assistant (C.P.A.) James Quarcoo, who are Police personnel and Community Police Assistant stationed at Achimota Mile 7 arrested accused person Kwame John a.k.a. ‘Nature’ together with dried leaves suspected to be cannabis and lodged a formal complaint. PW1 continued that at about 10:00hrs on the said date, the arresting officers spotted the accused person in a suspicious manner at Dome market area. That the men followed the accused person to a secured location where they accosted the accused person and arrested him. That upon a The Republic v. Kwame John aka ‘Nature’ Page 3 of 13 spot search on him one and half compressed slabs of dried leaves suspected to be cannabis were retrieved from him. The arresting officers escorted the accused person to the Achimota Mile 7 Police station and a formal complaint was lodged and the accused person was handed over together with the exhibits. That the accused person admitted being the possessor but not the owner of the substance as it was given to him by an unknown dispatch rider to be handed over to another person whom he refused to disclose his identity or lead Police to arrest such a person. That the exhibit was forwarded to the Police Forensic Laboratory for analytical examination; and the exhibit scientific result after analysis is “Positive for Delta-9-tetrahydrocannabinol, cannabinol and cannabidiol” which are all active ingredients in cannabis. PW2, also gave his details as Inspr. Peter Zufaanibe stationed at Achimota Mile 7 Police station Command. He testified that on 1st November 2023, himself, Inspr. Peter Azurago and Community Police Assistant (C.P.A.) James Quarcoo, who are Police personnel and Community Police Assistant stationed at Achimota Mile 7 arrested accused person Kwame John a.k.a. ‘Nature’ together with dried leaves suspected to be cannabis and lodged a formal complaint. That they spotted the accused person in a suspicious manner at Dome market area; and followed the accused person to a secured location where they accosted the accused person and arrested him. That upon a spot search on him one and half compressed slabs of dried leaves suspected to be cannabis were retrieved from him. That they escorted the accused person to the Achimota Mile 7 Police station and a formal complaint was lodged as the accused person was handed over together with the exhibits. That the accused person admitted being the possessor but not the owner of the substance as it was given to him by an unknown dispatch rider to be handed over to another person whom he refused to disclose his identity or lead police to arrest such a person. Thereafter, the prosecution closed its case. The Republic v. Kwame John aka ‘Nature’ Page 4 of 13 After the close of the case of the prosecution, the Court examined the evidence of the prosecution witnesses to determine whether a prima facie case had been made by the prosecution to warrant the accused person to open his defence. The Court then made a finding that the prosecution had made out a prima facie case against the accused person; and he was called upon to enter into his defence. In view of the above, the Court found that the accused person had a case to answer. The court however explained the rights of the accused person to him that he can decide to remain silent, make an unsworn statement from the dock or give evidence on oath. The court also reminded the accused person of the charge against him. The trial was adjourned for the accused person to decide the option to choose. On the next court sitting, the accused person informed the court that he had chosen to remain silent. The accused person did not also call witness. LEGAL ISSUES The legal issue to be determined by this court is whether or not the accused person possessed or was in control of a narcotic drug for trafficking without lawful authority. BURDEN AND STANDARD OF PROOF A fundamental principle of our criminal justice system is that a person accused of a crime is presumed innocent until he has pleaded guilty or proven guilty. It is trite learning that in criminal cases, the prosecution bears the burden to prove the guilt of the accused person beyond reasonable doubt. See sections 11(2), 13(1) and 15 of the Evidence Act, 1975, (NRCD 323). In the case of Gligah & Attiso v. The Republic [2010] SCGLR 870, the Supreme Court held as follows; The Republic v. Kwame John aka ‘Nature’ Page 5 of 13 “Under article 19 (2) (c) of the 1992 constitution, everyone charged with a criminal offence was presumed innocent until the contrary is proved. In other words, whenever an accused person was arraigned before any court in any criminal trial, it was the duty of the prosecution to prove the essential ingredients of the offence charged against the accused person beyond reasonable doubt. The burden of proof was therefore on the prosecution and it was only after a prima facie case had been established by the prosecution that the accused person would be called upon to give his side of the story.” The burden on the accused person, when called upon to enter his defence, is to raise a reasonable doubt in the case of the prosecution. The standard of proof for the defence is proof on a balance of probabilities. Refer: Osae v. The Republic [1980] GLR 446 ANALYSIS Section 37 (1) of Act 1019 provides that: For the prosecution to succeed in proving a charge under section 37(1) of the Narcotics Control Commission Act 2020, (Act 1019), they must prove the following ingredients:- 1. That the accused had in his physical or constructive possession or control of the narcotic drug. 2. That the accused knew of the presence of the drugs. 3. He knew of the nature of the drugs possessed. The Supreme Court held in the case Bonsu alias Benjilo v The Republic [1998-99] SCGLR 112 holding 4 on proof of section 2 of PNDCL 236 which is similar to section 37(1) of Act 1019 as follows:- The Republic v. Kwame John aka ‘Nature’ Page 6 of 13 “To prove the charge of illegal possession of a narcotic drug under section 2 of the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236), it must be shown that the appellant not only had physical possession but also knowledge of the nature and quality of what was possessed; namely, a narcotic drug since physical possession without the requisite knowledge would amount to no offence”. See also the dictum of Ollenu JSC in Amartey v The State [1964] GLR 256 at page 261. The accused person has been charged with unlawful possession or control of narcotics drugs. The accused person on whom the narcotic drug was found did not dispute that the drug was found on him. The drug that is the cannabis was found on the accused person. He was therefore in physical possession. It is also clear from the evidence that exhibit ‘C1’ which is the forensic test report from the Forensic Science Laboratory of the Criminal Investigation Department that the substance which was found with the accused person and tested was cannabis. The accused person in his investigation caution and charge statements being exhibits ‘A’ and ‘B’ admitted that the substance was found on him. The accused was therefore in possession of the narcotic drug. The accused person did not show that he had lawful authority to be in possession of the drug. If the accused person was in possession of the drug without lawful authority, that is to say that accused person never offered any evidence as to having lawful authority to possess the drug as provided in section 37(1) of the Narcotics Control Commission Act 2020 (Act 1019); then the next obvious issue is whether or not the accused person had knowledge of the substance in his possession being a narcotic drug, for mere possession or control of a narcotic drug would not establish the guilt of the person in possession. The Republic v. Kwame John aka ‘Nature’ Page 7 of 13 In Bonsu alias Benjilo v. The Republic [supra], the Supreme Court held that in addition to possession or control of a narcotic drug, the prosecution must go further to establish that the accused person had knowledge of the nature and quality of the substance. From the circumstances surrounding the possession or control of the substance, it could be established whether the accused had knowledge or not of the substance. This, the prosecution is duty bound to prove. It has been held in a plethora of cases that to prove the charge of illegal possession of narcotic drugs, it must also be shown that the accused not only had physical possession but also knew of the presence of the drugs and the nature of the drugs possessed. Possession means not only physical possession but knowledge of the nature of the thing possessed. From the evidence on record, the accused knew that the substance he was carrying was narcotic drugs because he mentioned in his caution and charge statements that he was found in possession of the said substance but it was not for him as he had been asked to give same to another person. Moreover, the conduct of the accused person at the time he was arrested also suggests that he knew the nature of the item he was carrying. Therefore it cannot be said that the accused person did not know the nature of substance he was carrying. In any case the accused person is presumed to know the substance he agreed to carry to the said other person since at his age and being a driver he cannot reasonably just decide to send an item to another person without knowing the nature of the said item as he claimed. He ought to have found out from the person who allegedly sent him what the said item was. The accused person never gave reasons as to why he failed to find out what the substance was, before agreeing to carry same to be sent to another person as he claimed. It is not sufficient for the accused person to state that he did not know that the item that was found in his possession was a narcotic drug. The accused person failed to The Republic v. Kwame John aka ‘Nature’ Page 8 of 13 produce sufficient evidence to proof that he did not know that what he possessed was a narcotic drug. I find it incredible to accept as true, the conscious pretending of the accused that he was ignorant of the substance he was carrying to be a narcotic drug. In the case of Commissioner of Police v. Isaac Antwi [1961] GLR 408-412, it was held that the accused person is not required to prove anything. All that is required of him is to raise a reasonable doubt as to his guilt. This is further emphasized by sections 11(3) and 13(2) of the Evidence Act, 1975 (NRCD 323). Section 11(3) provides that: “In a criminal action, the burden of producing evidence, when it is on the accused as to a fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on the totality of the evidence a reasonable mind could have a reasonable doubt as to guilt.” All that the accused person needed to do was to raise a reasonable doubt in the case of the prosecution but he could not do so. The accused person did not give evidence to attempt to raise a reasonable doubt in the case of the prosecution. The accused person could not give a reasonable explanation that showed that he did not have knowledge of the cannabis he had in his possession. The principle is that knowledge is not capable of direct proof and it is established by reasonable inferences that can be made from established facts. In Asamoah v. The State [1962] 2GLR 207 the Supreme Court held that “it is not necessary for the prosecution to lead evidence of actual knowledge”. It is therefore safe to infer from the evidence on record that the accused knew that he was carrying cannabis, a narcotic drug. It is clear that the accused person knew of the nature The Republic v. Kwame John aka ‘Nature’ Page 9 of 13 and quality of the thing he possessed as cannabis. I thus find that the accused knew that the nature and quality of the item he possessed was cannabis as in exhibit ‘C1’. Section 37(1) of Act 1019 as stated above puts the burden on the accused to show that he had lawful authority to possess the cannabis. However, the accused led no such evidence to the effect that he had lawful authority to possess the cannabis. I consequently find that the prosecution has succeeded in proving their case beyond reasonable doubt against the accused as having unlawfully possessed a narcotic drug contrary to section 37(1) of Act 1019. Both PW1 and PW2 told the court in their evidence that the accused person refused to disclose the identity of the person he said he was to hand over the said substance to and he also did not lead police to arrest such a person. However under cross examination, the accused asked PW1 why he let the other person go and kept him because the police arrested him the accused and the person he was going to give the item to. PW1 answered that the other party was walking with the accused at the time of his arrest and the accused told them that the other party does not know about the exhibit found on him. PW2 who was part of the arresting officers admitted under cross examination that the accused person showed them the other guy and the two of them were arrested. PW2 further admitted that when they arrested them and searched the other guy they retrieved some of the substance from him. When the accused person asked him under cross examination why they released the other guy after they were sent to the police station, PW2 testified that it is the investigator who will answer that. Meanwhile the investigator who is PW1 had earlier denied that the other guy was searched and they found two of the substance on him. The Republic v. Kwame John aka ‘Nature’ Page 10 of 13 From the above pieces of evidence, there is contradiction between the evidence of PW1 and that of PW2, both under cross examination. Whilst PW1 and PW2 stated in their evidence in chief that the accused person did not identify or lead them to the person he mentioned as the owner of the substance; and PW1 further denied that there was another guy with the accused when both were arrested and the police found on both of them the said substance, PW2 who is one of the arresting officers admitted under cross examination that the accused was indeed arrested with one other guy and they retrieved some of the substance from that other guy when they searched him and further testified that it is the investigator who can answer why the said other guy was released but the accused person was arraigned before the court to be prosecuted. From the evidence on record, I believe the testimony of PW2 under cross examination as he was part of the officers that arrested the accused person whose said evidence supports the accused person’s position that, two of them were arrested and searched where these substances which exhibit ‘C’ indicates as cannabis were found on them but the investigator after letting the said other guy go, denied that some of the substance were found on the other guy whilst the arresting officer admitted same. It is such a shame that the police in this case decided to do selective prosecution and allowed the said other guy who from the evidence on record, the arresting officer admitted that they retrieved some of the substance from him, to go without equally arraigning him before the court as they did with the accused herein. It is an embarrassment to the justice delivery system; and the police officer(s) who allowed this selective prosecution to happen should bow their head(s) in shame. On consideration of the entire evidence on record, I find the accused person had in his possession a narcotic drug without lawful authority. However the evidence on record does not sufficiently establish that the accused person was trafficking the said substance The Republic v. Kwame John aka ‘Nature’ Page 11 of 13 as the prosecution seemed to have charged the accused person with unlawful possession of narcotic drug for trafficking given that they also came under section 37(2)(b) of Act 1019. CONCLUSION On the totality of the evidence on record, there is no adequate evidence as to where the accused person was trafficking the said cannabis to. The accused person was only seen with the said substance around the Dome market area but there is no evidence that he was trafficking same. The ingredients of the lesser offence of possession without lawful authority was established by the prosecution but the prosecution could not establish that same was for trafficking. By virtue of section 154 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), I find the accused person guilty of unlawful possession of narcotic drug for use being the lesser offence since the prosecution could not establish the trafficking element. Consequently, I hereby convict the accused person of the offence of unlawful possession of narcotic drug for use. Pre-Sentencing hearing Court: Any plea in mitigation before sentence is passed? Accused: I plead with the court to have mercy on me that I have a five year old child and I am the only one taking care of the child. The mother of the child is unemployed. Court: Is the accused person known to the police? Prosecutor: He is not known to us. SENTENCING The Republic v. Kwame John aka ‘Nature’ Page 12 of 13 In sentencing the accused person, the court takes into consideration the fact that he is a first-time offender as well as his youthful age. The court has also considered the plea in mitigation of the accused person. In accordance with Article 14(6) of the 1992 Constitution, time spent in custody by the accused person pending trial, (because he could not get the appropriate people to stand as sureties for him) is also considered by the court. However, the court has equally considered the entire evidence on record and the fact that the crime in narcotics continues on daily basis. The court has also considered the punishment prescribed for the lesser offence of unlawful possession of narcotic drugs for use. I consequently sentence the accused person to a fine of two hundred (200) penalty units. In default of the fine, the accused person shall serve a term of imprisonment of three (3) months in hard labour. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) (CIRCUIT COURT JUDGE) The Republic v. Kwame John aka ‘Nature’ Page 13 of 13